Westminster v Horseferry Road Justices & Ors

Under section 77 A of the Licensing Act 1964, a special hours certificate cannot cover physical areas which are not themselves covered by a music and dancing licence. The relevant premises are the premises covered by the justices’ liquor licence, unless the statute clearly provides otherwise. The certificate may cover a smaller area than the music and dancing licence, but not a larger area. The statutory power to revoke a certificate for misuse does not justify granting it more widely than section 77 A permits. A provisional certificate granted contrary to that requirement cannot properly be made final.

Westminster appealed by way of case stated against the decision of the licensing justices at Horseferry Road Magistrates’ Court on 7 May 2002. The justices had made final a provisional special hours certificate covering both floors of Elysium, although the music and dancing licence covered only the basement.

The central question was whether section 77 A(3) permitted a special hours certificate to extend to part of licensed premises for which no music and dancing licence was in force.

1. The appeal was allowed to the extent that the special hours certificate was declared to apply to the basement floor only and to no other part of Elysium.

2. Section 77 A(1)(a)(ii) uses “the premises” to refer to the premises covered by the justices’ liquor licence. The language does not permit that expression to be enlarged to mean the whole premises or any part of them. If that had been intended, the draftsman could have said so.

3. The concluding words of section 77 A(1) permit an application relating to part only of the premises. Properly construed, they allow the area covered by the special hours certificate to be smaller than the area covered by the music and dancing licence. They do not permit the certificate to cover an area outside the music and dancing licence.

4. The statutory scheme links the two licences. Section 81(1)(b) provides for automatic revocation where the necessary music and dancing licence ceases to be in force. Section 81(2) supplies a mechanism for policing misuse, but that enforcement mechanism is not a reason to enlarge the initial grant. A construction which exposed a ground-floor bar to use by late-night drinkers would create avoidable enforcement difficulties and undermine the statutory purpose.

5. The governing principle, reflected in R v Crown Court at Stafford, ex parte Shipley [1998] 2 All ER 465, is that, during the extended hours, drinking must remain ancillary on the whole to food or entertainment. The present grant was inconsistent with that scheme because the ground floor lacked the necessary music and dancing licence.

6. Since the provisional grant was unlawful, the final grant under section 77 A(3) was also unlawful. Westminster was awarded its agreed costs. Permission to appeal was granted and a stay was ordered pending any appeal.

1. High Court (Administrative Court): On an appeal by way of case stated, the court answered the justices’ question in the negative and allowed the appeal to the stated extent.